U.S. v. McIntyre
| Citation | 997 F.2d 687 |
| Decision Date | 07 June 1993 |
| Docket Number | No. 91-6331,91-6331 |
| Parties | 38 Fed. R. Evid. Serv. 1440 UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward McINTYRE, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Jack Fisher, Edmond, OK, on the brief, for defendant/appellant.
Charles Edward McIntyre, pro se.
Joe L. Heaton, U.S. Atty., and Frank Michael Ringer, Asst. U.S. Atty., Oklahoma City, OK, on the brief, for plaintiff/appellee.
Before TACHA and EBEL, Circuit Judges, and O'CONNOR, District Judge. *
This case comes before us on direct appeal from the defendant's conviction in the United States District Court for the Western District of Oklahoma. The defendant was charged with conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and travelling and causing travel in interstate commerce to facilitate the distribution and possession of cocaine and cocaine base with intent to distribute, in violation of 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 2. The case was tried to a jury, which found the defendant guilty on all counts. The defendant now appeals, asserting fifteen different errors below. We affirm.
The defendant was involved, along with a number of co-conspirators, in a drug trafficking ring that transported cocaine and cocaine base from Southern California to Oklahoma City, Oklahoma. The cocaine was then "cooked" and transformed into rock cocaine or "crack" and sold on the streets.
The police intercepted some portion of three transfers of narcotics between California and Oklahoma. In January of 1990, the defendant, accompanied by Vickie Hogg, one of the co-defendants, travelled to California from Oklahoma and acquired cocaine from J.C. Chatman, one of the co-defendants and the primary source for narcotics in California. Vickie Hogg purchased a one-way bus ticket to Oklahoma in the name of Stephen Smith and gave the ticket and the cocaine to Tashawn Kyle Cook at the Los Angeles Bus Depot. Cook was stopped, consented to a search of his luggage and the cocaine was discovered and confiscated.
On July 27, 1990, officers of the Oklahoma City Police Department, while on a narcotics interdiction assignment at the Will Rogers World Airport in Oklahoma City, observed the defendant, accompanied by Darren Hogg and Doris Wright, purchase tickets to Southern California. Darren Hogg was stopped at the security checkpoint where a dark and unidentifiable object was detected by the x-ray machine. He consented to a search of his bag where the police found $9,700 in cash. D. Hogg was informed that the money would be detained for inspection by a narcotics dog and that he was free to go.
The officers returned to where the defendant and Wright were standing and began to question them. They both denied being with the other or with D. Hogg. Wright at first consented to a search of her bag but once it had commenced told the officer to stop. The officer complied with her request. The officers informed the defendant and Wright that their bags would be detained until they could be inspected by a narcotics dog but that they were free to go. The bags were taken to another level of the airport and the parties followed, protesting that they had planes to catch. The defendant gave permission to search the bag he was carrying but denied that it was his. Wright then reauthorized the search of her bag. The police found $12,000 in cash and a portfolio containing letters to Vickie Hogg in the defendant's bag. The three individuals made their flight but their bags were detained.
On August 23, 1990, the defendant was stopped again at the Will Rogers Airport in Oklahoma City. The officers in Oklahoma had received information from an officer of the Dallas-Fort Worth task force that a passenger registered as Charles Smith had purchased a one-way ticket from Los Angeles to Oklahoma City with cash and suggested that he be stopped. 1 The officers observed the defendant, whom they recognized from the airport incident on July 27, 1990, deplane and followed him to the baggage claim area. The defendant picked up a gift-wrapped box, which was marked with the name Charles Smith. The officers approached the defendant and began to question him. Although he claimed to have no identification, the defendant's plane ticket read Charles Smith. The defendant claimed that the box was not his, that it belonged to Larry Taylor, that he had no way of contacting Larry Taylor, and that it contained cookware.
The officers informed the defendant that both he and the box would be detained until a search warrant could be obtained. The defendant was escorted to the police office in the airport where he was subjected to a pat down search. The officers observed cigarette rolling papers in the defendant's open shirt pocket and when removed, observed marijuana in a cellophane envelope. The defendant was informed that he would be placed under arrest for possession of marijuana. 2 At that time the defendant orally consented to the search of the box. However, because the defendant was unable to sign a consent form, the police instead made an application for a search warrant. Based in part on a positive alert from a narcotics detector dog, the search warrant was issued and the box was found to contain four 4,000 milliliter glass beakers as are commonly used in the cooking of crack cocaine.
On August 24, 1990, the Oklahoma City police were informed by the Los Angeles Police Department, who received the information through an informant, that the defendant was out on bond and was at an apartment on 46th Street in Oklahoma City cooking cocaine that he and his co-conspirators had brought in from California. The Oklahoma City police verified that the defendant was out on bond, learned that the apartment was rented to Vickie Hogg, and learned from the apartment manager that there was suspicious activity at the residence. The police obtained a search warrant and executed it on August 25, 1990; however, no drugs were found. Vickie Hogg was in the apartment when the warrant was served and the defendant and Tashawn Kyle Cook were found outside the apartment.
On February 28, 1991, a confidential informant notified the Oklahoma City Police Department that the defendant was the "main man" in the biggest narcotics ring in Oklahoma City, and that the defendant had just returned from California with half a kilogram of cocaine, and that he was in room 141 of the Comfort Inn in Oklahoma City. The officers obtained a search warrant and served it the same day. They found the defendant with a woman in the room. The defendant was searched and two bags of cocaine were found in his underwear. Two additional bags of cocaine were found in the box springs of the bed. The defendant was placed under arrest at that time.
The defendant was indicted along with Vickie Hogg on March 20, 1991. He was charged with conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (count 1); possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (counts 2 & 5); and travelling and causing the travel in interstate commerce to facilitate the distribution and possession of cocaine and cocaine base with intent to distribute, in violation of 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 2 (counts 3 & 4). On July 2, 1991, the court ordered the trial of Vickie Hogg and the defendant (No. CR-91-52-T) consolidated with the trial of Clara Gary, Lenanier Brown, J.C. Chatman, Ronnie Miller, and Kenneth Eugene Wright, each of whom had been indicted separately (No. CR-91-51-T). On July 16, 1991, the court granted the government's unopposed motion for The case was tried to a jury, and on September 30, 1991, the defendant was found guilty on all five counts. He was sentenced to life imprisonment on counts one and five, 480 months on count two, and 60 months on counts three and four. The sentences were ordered to run concurrently. The defendant filed a notice of appeal on October 3, 1991.
the severance of the trial of Clara Gary and Lenanier Brown. 3
In this appeal the defendant alleges fifteen separate errors: 1) denial of the motion to suppress evidence seized at the airport on July 27, 1990; 2) denial of the motion to suppress the glass beakers seized at the airport on August 23, 1990; 3) admission of the beakers pursuant to an unlawful search warrant; 4) the unlawful introduction of evidence of a prior arrest that was suppressed at a pre-trial hearing; 5) failure to suppress evidence seized from the motel on February 28, 1991; 6) failure to excuse for cause a juror who was a former police officer; 7) unlawful admission of hearsay documents; 8) unlawful admission of evidence of other acts outside the conspiracy; 9) prosecutorial comments on the defendant's failure to testify; 10) insufficient evidence to support a guilty verdict; 11) cumulative error; 12) error in the calculation of the amount of cocaine distributed for sentencing purposes; 13) erroneous classification of the substances distributed as cocaine base; 14) the unlawful application of 21 U.S.C. § 841 and U.S.S.G. § 2D1.1., which he claims are void for vagueness; and 15) error in increasing his sentence under U.S.S.G. § 3B1.1(c) for serving as a leader or organizer. 4 We affirm.
The first five of the defendant's allegations of error relate to the district court's admission of evidence that was acquired through searches and seizures at the Oklahoma City Airport on July 27, 1990, and August 23, 1990, and in a search of an Oklahoma City motel room on February 28, 1991. The defendant filed a motion before the district court on July 8, 1991, requesting that the court suppress this evidence. He also filed a forty page brief in support of this motion that set forth the same bases...
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